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Lee v Globe and Mail (2001), 6 CPC (5th) 354. (Ont SCJ)


D counterclaimed against the P in his SoD. P wants to strike out the counterclaim bc he says it displays no cause of action. P is former PM of S – GM published story at issue against the P. N was a former official of gov in S and defends the claim of liable and responds w/ counterclaim saying liable claim is abuse of process and that P is backed by gov of S and that they could bankrupt me. P brings claim to strikeout counterclaim on abuse of process


Is it plain and obvious that the counterclaim cannot succeed bc it displays no reasonable cause of action?


Don’t strike something out unless it is plain and obvious that it wont proceed

Test for abuse of process (high threshold) – for when you can use this counterclaim
**P in bringing action is using court for collateral and improper purpose
**Point to overt things P has done to carry out that improper purpose, separate and apart form just bringing proceeding
***This is typically the stumbling part of the test


Under r.21.01(1)(b) P moves to strike the claim on the grounds that it discloses no reasonable cause of action or defence

Court can also strike out an action under 25.11 on the ground the pleading is scandalous, frivolous or that it is an abuse of process

Test for determining whether a pleading should be struck – Hunt
**One must look to see if it is plain and obvious that the counterclaim discloses no reasonable cause of action
**If there is a chance of that the P might succeed, the P should not be driven from the driver’s seat
**On a motion to strike out a pleading the court must accept that the facts alleged in the SoC as proven UNLESS they are patently ridiculous


Motion dismissed – D satisfies elements of tort, so the counterclaim is not dismissed. Predominant purpose is an improper one AND P took steps before and after initiating of lawsuit, ex forcing N to resign, disclosing info about N, etc, to threaten and deter N


Only looking at pleading to see if it articulates both of these steps – not a Q today of whether these things are provable in evidence, bc this is a motion not a trial

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